California: District Court Injunction Briefly Halts Ammo Background Checks
On April 23, gun owners in California enjoyed a fleeting, but important, boost when Judge Roger Benitez of the Southern District of California issued a preliminary injunction nullifying the state’s background check requirements for ammunition purchases/transfers. The checks, established by 2016’s Proposition 63 ballot initiative, entered effect last summer and their significant chilling impact on legal sales is now clear.
The decision led to an immediate ammo-buying frenzy among informed California gun owners and was promptly overridden by a temporary stay issued by the 9th Circuit on the 24th. Thus, unlike 2019’s “Freedom Week” (which was also prompted by a Benitez-issued injunction against California’s firearm magazine restrictions), 2020’s rendition lasted less than a day. Even so, Benitez’s writing gives us plenty to discuss.
The Main Gate
Benitez describes California’s ammunition purchase regimen as a collection of doors – one “main gate” followed by four “doors”. To legally buy ammo in the state everyone must clear the main gate before proceeding to one of the subsequent options:
Yet, proving citizenship in California is not such a simple task. Benitez remarks that, “[b]y itself, a standard California driver’s license or identification card is not good enough to prove citizenship.” Expanding upon this, he highlights, “complicating the picture is a 2013 state law known as AB 60. Among other things, AB 60 directed the Department of Motor Vehicles to issue California DLs to aliens who may be unlawfully present in the United States.”
Because a standard California ID is not sufficient proof that a prospective buyer is even a U.S. Citizen, some additional proof is necessary, such as a passport or REAL ID. Neither are free and neither are as immediately available nor widely possessed as a standard ID.
Before moving past the main gate, Benitez considers that California has inverted the order of operations with respect to burden of proof:
Californians who pass through the main gate select one of four background check options. These include a “Standard” background check, a “Basic” background check, obtaining a Certificate of Eligibility (C.O.E.), or are purchasing ammunition alongside a firearm.
The Standard background check costs $1 and is the route most frequently taken. It requires purchasers to have previously purchased a firearm in the state:
The AFS database tracks all firearm transfers in California, at least those that have taken place since its inception (1990 for handguns and 2014 for long guns). It’s possible, likely even, that many Californians own legal firearms that are not in the AFS. If a person purchased before either of the aforementioned years or moved from another state, their acquisitions would not be logged.
If the prior transfer took place in California, rectifying the situation should be fairly quick and easy. However, if a California Dealer Record of Sale (DROS) cannot be located, the process takes much longer. In some cases, as many as three months.
Those who don’t select Door No. 1 typically choose Door No. 2, the “Basic” background check. According to Benitez, “[i]f there are no hits [from criminal database searches], the Door No. 2 ammunition purchase is approved quickly. This happens approximately 25% of the time. The other 75% of the time, a manual review by a California Department of Justice analyst is required.” It isn’t clear why the delay rate is so high for this route, but the result is that few who travel this road get ammunition quickly.
Data provided by the California Department of Justice reveals significant delays:
Incredibly, even those approved with a Basic check must still pay the $19 fee every time he/she purchases ammunition. There is no provision to waive the fee or reduce requirements for buyers who have already passed the Basic check. When a box of pistol ammo usually costs around $10-15, the $19 fee adds a massive markup.
Doors 3 (Certificate of Eligibility) and 4 (purchasing ammunition with a firearm) don’t receive as much attention in Benitez’s injunction. He correctly notes the Door 4 irony that encourages buyers to simultaneously stock up on firearms and ammunition.
Heller's Hardware Test
Perhaps echoing some of Justice Kavanaugh’s sentiment, Benitez argues that courts have misapplied the sliding scale of scrutiny post-Heller. In Heller, Justice Scalia established that the constitutionality of restrictions placed on firearms (and ammunition) must be assessed based on a simple hardware test. Is the firearm/ammunition commonly used for lawful purposes? If so, it is protected against infringement:
There should be no need for additional judicial review because the regulation fails the simple hardware test. It’s likely some would observe this fact and argue that the law does not wholly prohibit ammunition sales and therefore could be subject to a lower level of scrutiny. For them, Benitez also has a response:
With respect to intermediate scrutiny, he continues:
While California officials have argued that the plaintiffs lack standing and the case should therefore be tossed. Benitez disagrees with this assertion. According to his injunction, the government is responsible for proving that the restrictions reasonably fit the stated public safety interest, at which point he then directs back to the lack of evidence presented to support such a claim.
Finally, the Attorney General argues that the court should give deference to the public on matters such as Proposition 63 that receive majority support through ballot initiatives and referendums. Again, Benitez rejects this defense stating, “[a] ballot proposition is precisely what the Bill of Rights was intended to protect us from – a majority trampling upon important individual rights.”
The final issue raised by Benitez’s injunction addresses Proposition 63’s violation of the Commerce Clause. Because the law prohibits “importation” of ammunition purchased out-of-state, it significantly favors California vendors over vendors from other states. Citing Granholm v. Heald, Benitez states:
Continuing with this comparison:
As noted at the start of this article, Benitez’s District Court injunction preceded a near-immediate administrative stay granted in favor of the State of California by the 9th Circuit of Appeals. The stay temporarily preserves the status quo pending further court orders. Thus, “Freedom Week 2020” came to a remarkably quick end.
It’s important for gun owners, particularly those in California to realize that just as the injunction was not the end of this issue, neither is the stay. This case has a long road ahead and it is unlikely we’ll see a resolution to/revocation of Proposition 63 any time soon. However, the challenges raised by Benitez require adequate responses from Attorney General Becerra, which will be no easy task.
An information security professional by day and gun blogger by night, Nathan started his firearms journey at 16 years old as a collector of C&R rifles. These days, you’re likely to find him shooting something a bit more modern – and usually equipped with a suppressor – but his passion for firearms with military heritage has never waned. Over the last five years, Nathan has written about a variety of firearms topics, including Second Amendment politics and gun and gear reviews. When he isn’t shooting or writing, Nathan nerds out over computers, 3D printing, and Star Wars.